By Sarah Everhart
This post is not legal advice. See here for the site’s reposting policy.
I have previously posted about the Organic Livestock and Poultry Practices (OLPP) Rule, as well as the litigation filed over the U.S. Department of Agriculture’s (USDA) failure to enact the rule. Kelley Poole, Vice President of Government Affairs, Organic Trade Association (OTA) and Alison Howard, a Maryland organic farmer also recently discussed the rule at ALEI’s third annual Agricultural and Environmental Law Conference. To check out their presentations, go here.
By way of review, on January 19, 2017, USDA published the final rule which establishes minimum indoor and outdoor space requirements for chickens as a function of type of production and stage of life, as well as adding new provisions for livestock handling and transport for slaughter (82 FR 7042). The rule was to be effective on March 20, 2017. On February 9, 2017, however, USDA delayed the effective date of the standards for an additional six months (November 14, 2017). At that time, USDA’s Agricultural Marketing Service (AMS) solicited public comments on the direction USDA should take with the rule. Four options were presented:
Option 1: Implement, allowing the OLPP final rule to take effect on November 14, 2017;
Option 2: Suspend the OLPP final rule indefinitely;
Option 3: Delay the OLPP final rule’s effective date beyond November 14, 2017; and
Option 4: Withdraw the OLPP final rule. The 30-day public comment period closed on June 9, 2017.
The OTA filed suit against USDA’s failure to enact the standards on September 13, 2017, citing violations of the Administrative Procedures Act and the Organic Foods Production Act.
On November 14, 2017 USDA announced a further delay of the effective date of the rule until May 14, 2018. While the delay was published November 14, it was dated November 9. According to USDA-AMS, it received over 47,000 public comments on the four options. The vast majority (over 34,600) of the comments supported Option 1, implementing the rule. USDA-AMS, however, chose option 3, delaying the rule “so that important questions regarding USDA’s statutory authority to promulgate the OLPP Rule and the likely costs and benefits of that rule, can be more fully assessed through notice and comment process prior to AMS making a final decision on whether the OLPP final rule should take effect.” In its justification for delay, USDA-AMS also cited concerns how whether the regulations should regulate animal welfare, as well as whether the rule’s cost vs. benefit or regulatory impact analysis was done properly. According to USDA-AMS, it opted “to preserve the status quo rather than allow an expansive set of new requirements to become effective only to be delayed, suspended, or withdrawn a short time later and to allow AMS to receive and consider comments…”
Although the future of the rule is unclear, organic farmers interested in seeing the rule finalized are not likely to get resolution any time soon. Stay tuned to this blog for future updates.